Singh and Minister for Immigration and Multicultural Affairs - [2001] AATA 923

DECISION AND REASONS FOR DECISION [2001] AATA 923

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1591

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Karm Singh
  Applicant
           And    Minister for Immigration & Multicultural Affairs
  Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date7 November 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and substitutes a new decision that the Minister's power under s 200 of the Migration Act 1958 not be exercised to deport Karm Singh.
  ..............................................
   R P Handley
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Deportation – Deportee convicted of supplying heroin and subsequently sentenced to imprisonment – exercise of the discretion – balancing of primary and other considerations
Expectations of the Australian community – seriousness and nature of the offence – risk of recidivism – deterrent effect of deportation
Best interests of the child – degree of hardship to deportee and deportee's family

Drug Misuse and Trafficking Act 1985 (NSW)
Migration Act 1958: ss 200, 201, 502
Ministerial Direction No. 9 – "Australia's Criminal Deportation Policy – Criminal Deportation under s 200 of the Migration Act 1958"

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Whittaker and Minister for Immigration and Multicultural Affairs [2000] AATA 425

REASONS FOR DECISION

Mr R P Handley

This is an application by Karm Singh ("the Applicant") for a review of a decision of the Minister for Immigration and Multicultural Affairs ("the Respondent") made on 17 August 1999 to order the deportation of the Applicant from Australia.
At the hearing, the Applicant was represented by Caterina Salsone, of Counsel, and the Respondent by Murray Allatt, Solicitor of the Australian Government Solicitor's Office. The evidence before the Tribunal comprised the documents produced pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") together with the documents tendered by the parties. Oral evidence was given by the Applicant and by Penelope Austin Singh, Gurdev Singh, Jagdish Raj, Manpreet Singh, Kawaljit Kaur, and Gerard Webster.
BACKGROUND
The Applicant was born on 1 March 1959 in the Punjab in India. He is now aged 42. He was first married in 1979 to Harjeet Kaur from whom he separated in 1985 and has since been divorced. They had two sons, Jagmohan (also known as "Jack") who was born in 1981, and Manpreet (also known as"Manny") who was born in 1984.
In 1985, the Applicant moved from the Punjab to Delhi and, in late 1987, he travelled to New Zealand. After approximately 6 months in New Zealand, he travelled to Australia, arriving on the 15 May 1988. He started employment as a process worker in Sydney and, early in 1990, met Penelope Austin. They were married on 20 October 1990.
The Applicant was granted permanent residence on 12 December 1994. In January 1995, he travelled to India to organise visa applications for his two sons, returning to Australia in March 1995. In December 1995, he again travelled to India, this time accompanied by his wife, Ms Austin. She stayed for about six weeks and then returned to Australia. He stayed on to facilitate the processing of his son's visa applications. On 24 August 1996, permanent residence visas were granted to his two sons. Jack arrived in Australia on 14 October 1996 and Manny on 10 February 1997, as a result of a delay caused by the theft of his passport.
In 17 September 1996, the Applicant was arrested and charged with supplying heroin; bail was refused. On 22 May 1998, the Applicant pleaded guilty to four counts of supplying heroin. On 22 December 1998, the Applicant was sentenced by Judge Wall, in the New South Wales District Court in Sydney, to imprisonment for a period of three years and four months. Judge Wall, in handing down his sentence, took into account that the Applicant had been subject to coercion by a third party as a result of which the Applicant "was in fear that his children in India would be harmed unless he became involved in the supply of heroin". On 16 June 1999, the Applicant was released from prison on parole.
On 17 August 1999, the Respondent signed a deportation order in respect of the Applicant and issued a certificate under s 502 of the Migration Act 1958 ("the Act"), the effect of which was to exclude review of that decision by the Administrative Appeals Tribunal. The Applicant sought judicial review of the certificate by the Federal Court. At first instance, the Court dismissed the application for review. However, on appeal, the Full Federal Court declared that the certificate was not one certificate to which s 502 of the Act applies: Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1426 (13 October 2000). On 17 October 2000, the Applicant lodged an application for a review of the Respondent's decision dated 17 August 1999 to make a deportation order against the Applicant.
RELEVANT LAW AND POLICY
Section 200 of the Act provides that the Minister may order the deportation of a non-citizen to whom Division 2 of the Act applies. Under s 201, the Minister may order the deportation of non-citizens who have been convicted in Australia of an offence for which the person was sentenced to imprisonment for a period of not less than one year and, when the offence was committed, the person had been in Australia as a permanent resident for a period of less than ten years. The Applicant was granted permanent residence on 12 December 1994. The offences of which he was convicted were committed, in September 1996. Thus, the Applicant is liable to deportation within the framework of the provisions of the Act.
On 21 December 1998, the Minister issued a General Direction under s 499 of the Act, entitled "Australia's Criminal Deportation Policy – Criminal Deportation under Section 200 of the Migration Act 1958" (Direction No. 9). Direction No. 9 states in paragraph 4:
The purpose of deporting a person from Australia is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to remain in the community.

The Direction goes on to provide guidance as to the important factors which should be considered by a decision-maker when determining whether or not a person should be deported. The two primary considerations to be considered in making a decision whether or not to deport a non-citizen, set out in paragraph 6, are:

(a) the expectations of the Australian community; and
(b)in all cases involving a parental relationship between a child or children and the potential deportee, the best interests of the child or children.

In addition to these primary considerations, paragraph 7 states that there will be other considerations that will be relevant in individual cases. Two of the most common are:
(a)the degree of hardship which may reasonably be expected to be suffered by the potential deportee;
(b)the degree of hardship to Australian citizens or permanent residents that would reasonably be expected to flow from deportation.

Direction No. 9 provides further guidance in relation to each of these considerations which will be discussed below in relation to the particular facts of the Applicant's case.
EVIDENCE
Karm Singh (the Applicant)

The Applicant told the Tribunal he was born in a village three kilometres from the Pakistan border in the heart of the Sikh homeland near Amritsar. His home was a farm just outside the village. The Applicant's father was active in the Sikh movement and a supporter of Sikh separatism and, as a result, he experienced problems with the Indian authorities. In June 1984, the Applicant's younger brother Major Singh, was working on the family farm when two men asked to borrow the tractor Major Singh was driving, which he refused. They then asked to borrow a motorbike, which he also refused. They abused him and there would have been a fight had not another family member come to the scene as a result of the noise. The men went away threatening that they would "get" Major Singh in the future. A few days later, Major went to the markets in Amritsar and never returned. The Applicant believes his brother was killed by criminal gangs who were active in the area at what was a time of political unrest. Major Singh's body was never found, but his clothes were found on ground near a temple. The Applicant and his friends and relatives conducted a wide search for him, contacting doctors, police stations, jails, mortuaries and enquiring widely of relatives and his brother's friends. The Applicant was assisted in the search for his brother by a friend, Varinder Singh, who worked as a Punjabi police officer.
The Applicant's investigation of his brother's disappearance drew attention to the Applicant, and his father was told by armed men that if the Applicant continued looking for his brother, he would be killed. The Applicant was also harassed by police who arrested him on three or four occasions, on one of which his father had to obtain a writ of habeas corpus in order to obtain his release from detention. The Applicant was never charged by the police on any of these occasions. His father was later informed by a friend that Major Singh had been killed by a criminal gang.
The Applicant was asked about the Minutes of the DORS Committee meeting of 23 March 1990 (T7), when the Applicant's application for refugee status was considered. He is recorded as having referred to "the Sant" at the Golden Temple in Amritsar. The Applicant explained to the Tribunal that this was a typographical error and this should have read "the Saint". This person was the chief of the Sikh worshippers at the Golden Temple who was nicknamed the Saint because of his good works. The Applicant said when he was interviewed by the DORS Committee on 23 March 1990, he told the Committee everything he knew of his brother's disappearance. At that time, the police thought it possible that his brother had been killed in the attack on the Golden Temple. Mr Singh said it was only later on, in particular because of his involvement with Darljit Singh and further information provided to him by his father when he returned to India, that he was able to piece together a clearer picture of what had happened to his brother. The Applicant was also asked about his own political involvement in the Sikh movement. He confirmed that he had been asked by the Saint to attend the All India Sikh Students' Federation in Ajnala, as a delegate for the movement in Amritsar. The Applicant also confirmed that on one of the occasions when he was detained by the police, he was tortured, including being beaten about the ankles which subsequently became swollen. The Applicant said he had not included this information in the statement he made on 16 May 1999 (T51), because he assumed the Department would already have this information and, in any event, the statement was compiled by his responding to questions put to him by his solicitor.
On the advice of his father, who had fears for the Applicant's safety, the Applicant moved to New Delhi in 1985 after the attack on the Golden Temple in Amritsar. The Applicant would only return occasionally to the Punjab, and in secret, and he would stay with his friend the police officer, Varinder Singh. The Applicant maintained contact with his father through Varinder Singh and his father also came to Delhi to see him. The Applicant said he was very upset at having to leave the Punjab and his children. In 1984, his wife moved away from the village to teach at a school some distance away. Initially, when the Applicant left the village, the boys spent a while staying with their mother, but then went to live with the Applicant's parents on their farm.
In 1987, the Applicant received threats, via his parents, that he would be killed. His father advised him to leave the country. The Applicant feared for his life and those of his parents and children, and decided that he would go to New Zealand. He chose New Zealand because he was advised by a travel agent that it was relatively easy to get a visa to visit New Zealand and from there he could travel to Australia. He had a friend in New Zealand and also friends and family in Australia. With the help of his friend's uncle, the Applicant obtained a passport and then what he thinks was a tourist visa for New Zealand. He arrived in New Zealand in late November 1987 He obtained an extension of his visa and worked as a fruit picker and process worker. While he was in New Zealand, he spoke to his father from a friend's place; he also spoke to his two boys who, having initially been at a private school, were later placed in a boarding school in Amritsar because of fears for their safety. The boys, both while at home on the farm at boarding school, were not allowed to go outside by themselves because of the perceived danger to their lives.
When the Applicant arrived in Australia, he obtained employment as a process worker at Sab Nife Pty Ltd for whom he worked from 1 June 1988 to 24 January 1989. During this period, he also worked as a kitchen hand at a restaurant. From June 1989 until August 1990, the Applicant worked for Caroma Industries Limited as a kiln operator and then, after that, for ACI Petalite as a machine operator until 1994. He injured his back in an accident at work in 1991 and between then and January or February 1994, when he was made redundant, he undertook light duty work. The Applicant made a workers' compensation claim in respect of his injury and received periodic payments of workers' compensation and, finally, a lump sum settlement in 1998. After he was made redundant in 1994, the Applicant undertook courses in Reading and Writing and English Language Skills. His plan was to set up a business. He had previous business experience in India: in 1981/1982 he was a primary produce merchant, dealing in rice and wheat; between 1982 and 1984, he was sub-contracted to run a hospital canteen; and in 1984 to 1985, he supervised the running of his father's farm.
After arriving in Australia, the Applicant was advised by a friend to make an application for refugee status. The Applicant knew nothing about making such an application before that time. He said he was desperate not to return to India and considered this was an appropriate application to make given his situation. In the end, his application was refused. He did not seek a review of this decision because in the meanwhile, he had married. The Applicant met Ms Austin in early 1990 and they were married on 20 October 1990. The Applicant later applied for permanent residence which was granted on 12 December 1994.
The Applicant said after his marriage, he and his wife bought a house at 15 Trent Place, Hassel Grove. In early 1994, they decided to move in with their friends Inder ("Paul") and Rajinder Kalsi and their three children. This was a communal decision, so that Mrs Kalsi would have some help with her children; so that when the Applicant's sons came to Australia they would have additional support; because this would enable the Applicant and Ms Austin to rent out and negatively gear their house; and because this would also assist the Kalsis with the payment of their expenses, so that they could focus on paying off their mortgage.
In January 1995, the Applicant travelled to India to organise visa applications for his two sons to come to Australia. He stayed in Delhi and his sons came to Delhi to see him and stayed for a week, during which time they went to the Australian High Commission to lodge their visa applications. The Applicant returned to Australia in late March 1995, and then, in December 1995, both he and his wife travelled to India. She stayed for six weeks and then returned to Australia, while he stayed on because of a delay in the processing of his son's visa applications, returning to Australia in April 1996. Finally, on 24 August 1996, permanent residence visas were granted to the Applicant's sons.
The Applicant had met Mr Darljit Singh (no relation) in late 1990 at the Sikh Temple in Parklea. As they were both from Amritsar, they maintained contact until Darljit Singh returned to India. Thereafter, they maintained occasional contact until, at the end of 1995, the Applicant received a telephone call from Darljit Singh shortly before the Applicant and Ms Austin were to travel to India. The Applicant told Darljit Singh he was going to India to try and speed-up the issue of visas to his sons, so that they could come to Australia.
Whilst he was in India, shortly before returning to Australia in April 1996, the Applicant met Darljit Singh at a friend's wedding reception. The wedding reception led to the Applicant being asked by Darljit Singh to join what the latter described as a friendly, "fun game" of cards. They played until the Applicant became drunk and his nephew took him home. A few days later, Darljit Singh visited him, and, during the course of their conversation, asked about whether his sons had obtained their visas. The Applicant told Darljit Singh there had been some delay, but that he had to return to Australia very soon. Darljit Singh said that if the Applicant gave him his sons' details and address, he would speed up the process and, if he was still in India when the visas were granted, he would bring the Applicant's sons' with him to Australia. The Applicant therefore took Darljit Singh and introduced him to his father and told his father that Darljit Singh would be assisting in completing further formalities with regard to obtaining visas for the boys.
Before the Applicant left India, Darljit Singh made some remark to him which suggested that the money which the Applicant had lost in the supposedly friendly card game, could possibly be regarded by Darljit Singh as a gambling debt. The Applicant hoped the remark was only a joke. After the Applicant left India, Darljit Singh went to the Australian High Commission with the Applicant's father and his children and also took the children for a medical check-up. Later, Darljit Singh had attended a function in India where the Applicant's father was also present. The Applicant's father introduced Darljit Singh to some friends. One of the friends recognised Darljit Singh as a gangster who had been in the group, thought to have killed the Applicant's brother. Neither the Applicant's father nor the Applicant had been aware of this.
When Darljit Singh returned to Australia, he contacted the Applicant, told him how he had helped the Applicant's sons with their visas and asked the Applicant about his plans. The Applicant told him about his proposed business ventures and Darljit Singh expressed interest in being involved. Not long after, the Applicant mentioned this to his father on the telephone. His father told him what he had heard about Darljit Singh's involvement in criminal gangs and of his association with the person who had been charged with the murder of another friend of the Applicant's.
When the Applicant next met Darljit Singh, the Applicant repeated what his father had said and told Darlijit Singh he wanted nothing more to do with him. Darljit Singh said the Applicant must pay him the gambling debt in full or help him re-establish his drug business in Sydney. Darljit Singh also made it clear that the Applicant's sons would be at risk if he did not comply. The Applicant told Darljit Singh that he did not want to be involved in any illegal activities. There followed an argument in the course of which Darljit Singh said the Applicant's friends in India had been very harmful to him, but they could not harm him any more because they were dead. The Applicant was shocked and Darljit Singh said that if he did not believe him, he should confirm it with those in India. The Applicant, therefore, contacted his father through a friend in Amritsar who told him that two of his friends, Mustu Singh and Kashmir Singh had been shot in an execution style murder. This was in addition to five other friends whose killing the Applicant learned about when he went back to India for the first time in early 1995. These five were VarInder Singh, the Applicant's police officer friend, who had been shot dead at a railway station, Harjinder Singh Billa, a friend who had been shot in his home town, Piara Singh, a cousin who had been killed while working on the Applicant's fathers farm, Dayal Singh, who had been killed at home and found after many days, and Kuldeep Singh who was found shot dead at home.

At about this time, the Applicant learned that visas had been issued to his sons on 24 August 1996. However, shortly afterwards his younger son's passport became lost and the Applicant was suspicious when Darljit Singh was the person who informed him of this. Darljit Singh knew where the Applicant's sons were living in India and the Applicant was afraid of going to the Australian police to tell them what was happening because he believed the Indian police would be unable to protect his sons from threats made by Darljit Singh. The Applicant considered that he had no option but to comply with Darljit Singh's demands until such time as his sons were safely in Australia.
Because of the threat to the lives of his children, the Applicant, when instructed by Darljit Singh, contacted a person by the name of Jerry. Over a period of two weeks, the Applicant met Jerry on approximately four occasions. On the first occasion, on 5 September 1996, the Applicant gave Jerry a sample of a drug. At the meeting on 11 September 1996, the Applicant supplied Jerry with a quantity of a drug. At the meeting of 16 September 1996, the Applicant agreed to supply Jerry with 224 grams of the drug but, on 17 September 1996, the Applicant supplied Jerry with 112 grams of the drug. The Applicant knew what he was doing was wrong but was not aware, at the time of his meetings with Jerry, what the drug was. Jerry gave him money for the drugs which the Applicant handed to Darljit Singh. The Applicant did not receive any money personally for meeting with Jerry or supplying the drugs. The Applicant said he had to do it, in order to save his children. All he wanted to do was to make sure his children arrived safely in Australia. Darljit Singh's instructions to the Applicant were to take whatever he was told to take to Jerry and, in turn, take anything that Jerry produced to Darljit Singh. The only discussion with Jerry was as to the weight of the drug involved and not what the substance was. However, the Applicant admitted he was aware that it was a bad drug. He only learned it was heroin when he was told by the police after he was arrested. At the time of his arrest on the 17 September 1996, Darljit Singh was standing behind him but he was not arrested. The Applicant told the police Darljit Singh's name and address and co-operated with them in their investigation.
The Applicant said a few weeks before he was arrested, he went to Mr Raj's Little India Restaurant where he and Mr Kalsi met with Darljit Singh and Darljit Singh's brother. The Applicant had told Mr Raj of the threats prior to the meeting at the restaurant and it was Mr Raj who served them that evening.
The Applicant's older son, Jack, arrived in Australia on 14 October 1996 and his younger son Manny, having obtained a new passport, arrived in Australia on 10 February 1997. Thus, the Applicant was in detention when they arrived in Australia they went to live with Ms Austin, who was still living with RajInder Kalsi and her children. The Applicant phoned them every day and they visited him in prison every week.
While the Applicant was in prison, he undertook employment, including, from January 1999, as a welder for CSI Engineering. He also commenced a welding course which he completed after his release. His sentence was backdated to the date of his arrest on 17 September 1996, when bail was refused, and, therefore, in March 1999, he commenced day release and worked outside in a metal workshop. In 1999, the Applicant also completed a fitness instruction course, a course in advanced resistance training, and a course in Reading and Writing in English. Also in April 1999, as part of his day release, the Applicant assisted with the aftermath of the Sydney hailstorms.
On 16 June 1999, the Applicant was released on parole, initially reporting every week, and then, after a month, every fortnight. He had to obtain the permission of his parole officer if he left New South Wales, which he did on one occasion when he went to Queensland about a business opportunity.
On 16 January 2000, the Applicant was released from parole. Since his release, he has learned Indian cooking in Mr Raj's Little India Restaurant and has been helping out at the Tandoori and Curry Club at Hornsby once a week. He has now offered to purchase this restaurant from the proprietor, Harbhajan Singh, for the price of $170,000, and has paid a holding deposit of $5,000 to secure an option to purchase at this price until 13 November 2001(A3). The Applicant said he will take a loan on his and Ms Austin's house to borrow the money to purchase the restaurant and he will also borrow some money from a friend. The Applicant is also helping with the business set up by his son and nephew, Pronexus Security, doing paper work and taking telephone messages.
The Applicant has a significant involvement with the Sikh community in Sydney where he is a member of the Parklea and Turramurra Temples. At the Parklea Temple, the Applicant helps prepare and serve food at the temple, cleans up afterwards and also cleans the shoes of the religious groups who participate in ceremonies. At the Turramurra Temple, the Applicant has helped with special collections for the new buildings. His sons also attend the Temple with him every Sunday and assist with voluntary work. He is keen to ensure that they grow up with the Sikh religion.
The Applicant believes that if he is deported to India, he will be killed. In any event, deportation will rupture his family in Australia. He will not take his sons back to India because of his fear that they also will be killed. They have now set themselves up in Australia and are happy with their lives here. His elder son, Jack, is involved in a successful business, and his younger son, Manny, is planning to go to university next year after the completion of his HSC in 2001. The Applicant believes those who have threatened him are waiting to find him in India. Therefore, he would have difficulty obtaining employment and would have to live secretly because of his drug conviction in Australia. The Applicant said his family could not operate on the basis of Ms Austin and his sons visiting him from time to time in India. Ms Austin does not want to go to India after her experience visiting India in late 1995/early 1996.
The Applicant said that if similar threats made to him again in Australia, he would go to the police for help. Apart from the drug offences of which he was convicted in 1996, he has no convictions other than a drink driving charge in 1992.
In answer to questions in cross-examination, the Applicant said in 1996 his family had a solid income, even though he was not working. His wife was working full-time, they were receiving rent from their house in Hassel Grove and he was receiving over $300 per week in Workers' Compensation and owned a water truck business which was producing income of approximately $250 per week. From their income, he and his wife paid a mortgage of between $700 and $800 per month, but otherwise had no other debts.
With regard to the Applicant's family in India, both his parents are alive but his mother is very sick and his father has recently suffered a heart attack and is old. He is over 70. The Applicant has sisters who are married and living in their in-law's houses. Many of his friends have been killed. He could not earn a living working on his father's farm. Indeed, the Applicant helps support his father by sending him money from Australia. The Applicant said there could be a language problem for him if he sought to work in other parts of India and, even then, he would be frightened for his life because he has been threatened that if he returns to India, they will find him wherever he is.
With regard to his son's and nephew's security business, Pronexus Security, the Applicant said that the business is awaiting the results of tenders submitted in respect of a number of jobs, including for SBS and Chubb Security. Presently, the business does not have work, but when it did have work it was employing between 30 and 40 people. Jack is currently taking an overseas holiday back-packing in Europe. Mr Singh said that in the early part of this year, Jack was stressed as a result of pressure of work and the Applicant and Ms Austin agreed that he take a four to six week overseas holiday. This was his first trip overseas. Jack left around March 2001 He later contacted Mr Singh to say that he wanted to extend his program to make it a world tour which he has supported by working as he travels. Since he has been away, he has maintained contact with his family by phone. In the last seven weeks, Jack has phoned home twice and has spoken to Manny on both occasions. The Applicant was not home when he rang on those occasions and Jack asked Manny to pass on his love to his father and Ms Austin. Jack has also recently spoken to the Applicant's cousin in the United States with whom he is intending to stay on his way back to Australia across America.
Penelope Austin
Ms Austin said although she was born in Mudgee, she has lived in Sydney for the past 15 years since the age of 18. Since 1991, she has worked as a full-time registered nurse in Haematology at Westmead Hospital. She said when she married her husband, whom she calls "Tony", in October 1990, she was aware of his two sons in India and that he wanted his sons to come to Australia to live with them. There were more opportunities for them in Australia. Ms Austin said she and her husband bought the Hassel Grove house in about November/December 1990 with a mortgage of $110,000. The Applicant was injured at work in 1991, but continued working on light duties until 1994 when he was made redundant. Between 1991 and 1994, he was earning between $400 and $500 per week net. In 1994, she was earning about $500 per week net.
In 1994, Ms Austin and the Applicant moved out of the Hassel Grove house and moved in with Inder and Rajinder Kalsi. This was a decision made by both families, so that Mrs Kalsi would have some help with her three children and so that the Applicant's boys would have a larger family setting to come to in Australia. The move was financially advantageous to Ms Austin and the Applicant who were able to let out and negatively gear their house, and also to the Kalsis whose bills Ms Austin and the Applicant paid while the Kalsis paid their mortgage.
In December 1995, Mr Austin went with the Applicant to India. She saved up for this trip, so that it did not cause particular financial difficulties. In India, they moved around, not staying in any one place for more than a few days. The Applicant always ensured that she had a couple of chaperones, but did not tell her why. Most of the time, however, she was in people's houses and compounds. There were a lot of people coming and going all the time, not just relatives and friends, but members of the Sikh community who were always friendly. Ms Austin said she found the time she spent in India difficult because she needed to have people with her the whole time to interpret for her. Also, she could not eat the food, and suffered nausea, diarrhoea, headaches and sinusitis. In Delhi, she was affected by the heavy pollution. They stayed in Delhi, Amritsar, Srinegar, and Agra, but did not stay in the Applicant's home village. Ms Austin was told that they could not go to his village, and even his parents were brought to see them at a hotel. When she met the Applicant's sons, they were brought to see her by the Applicant and his friends who went to collect them from a hostel. Ms Austin said she would not want to live in India because she likes her freedom and independence. Her home is in Australia, where she has her family and friends and her work.
Ms Austin said that in the weeks before the Applicant's arrest, he was nervous, hyperactive and having nightmares. At the time, she did not know why. When he was arrested in September 1996, she could not believe it when she learned that he had been arrested and charged with supplying heroin. She was shocked because it was so out of character. He had never been involved with drugs before. It was only when she visited him in prison, that she learned what had happened. The Applicant had not wanted to tell her earlier because he was afraid she would tell the police who might arrest Darljit Singh with a result that the Applicant's sons in India would be put at risk when the police in India could not protect them properly.
Ms Austin recalled one incident when she was visiting the Applicant in prison, when a man came over to the table where she was talking with the Applicant and threatened him, saying that if the Applicant said anything, his boys would be killed. She learned afterwards that this was Darljit Singh's brother, Arjit Singh. The Applicant told her about the "so called gambling debt" which Daljit Singh alleged the Applicant owed him. The Applicant told her he had thought this was a friendly game, while they were drinking. It was not until much later that Darljit Singh told the Applicant that he owed him a debt
When the two boys eventually arrived in Australia, the Applicant was in prison and Ms Austin was living with Rajinder Kalsi and her three children. The Applicant's boys therefore came to live with them. Initially, Jack could not speak any English and Manny only a little, although they could both write a little in English. They were sent to a special school to learn English. The boys were able to visit the Applicant once a week in prison and could speak to him on the phone. Ms Austin was not always able to go with them to the prison at weekends, because she was working nightshifts at the hospital. While the Applicant was in prison, Jack had "acted up a bit" but Ms Austin said this was probably understandable in the circumstances. He did not always go to school. She did not tell the Applicant the full extent of how difficult Jack was at this time. When the Applicant was released from prison, Jack's behaviour improved dramatically. He was like a different person, more settled, polite and happier. Manny, who had been very introverted and shy, also became more outgoing, friendlier and happier. Ms Austin said the relationship between the Applicant and his sons has returned to a normal relationship: he is supportive, takes them places, cooks for them and is generally there for them. The boys go with him when he goes to the Sikh temple at Parklea and to the temple at Turramurra. However, she has not converted to the Sikh religion.
Ms Austin said her health has improved since Mr Singh was released from prison, and, in particular her blood pressure has stablized. Currently, she is having fertility treatment to enable her to have a baby.
Ms Austin referred to the water truck business that her husband had started around 1995/1996 with another partner. When the Applicant was imprisoned, Ms Austin took over his partnership. She said that the hire fee for the truck was $500 per week, but it was not hired out every week. She continued to own a share in the business until 1999, operating the business as a tax loss as far as possible.
Ms Austin said the Workers' Compensation settlement received by the Applicant in 1999 was approximately $40,000. She moved back to the house in Hassel Grove about January 1999. The mortgage has now been paid off and the title to the property has been transferred into her sole name. However, the property is collateral security for an investment property she has purchased on which she owes approximately $189,000. Her husband has no financial interest in the two houses. She is happy for him to go into the restaurant business and is aware of the option he has to purchase the Tandoori and Curry Club for $170,000. She said their friend, Mr Raj, who owns the Little India Restaurant has given them a lot of support, especially when the Applicant was in prison.
Ms Austin said the Applicant encouraged Jack and his nephew, Kenny, to get involved in the security business. Manny is in his final year at school and doing the HSC. After school, he wants to go to university to study information technology. Ms Austin would like the boys to stay in Australia, because there are more options open to them and it is safer. Moreover, they have just started to get their lives together in Australia. If the Applicant is deported to India, she would not be able to afford to visit him regularly and she could not live there herself for a range of reasons. She is also worried that he might be killed.
Gurdev Singh
Gurdev Singh, the head priest at the Parklea Sikh Temple since 1993, said he had known the Applicant for about seven years. Gurdev Singh said the Applicant comes to a service at the temple every week. He helps with the preparation and serving of food, cleaning floors in the community kitchen, and polishing shoes for the congregation during prayer, as well as engaging in religious activities. The Applicant also brings his sons to the temple.Gurdev Singh said that the Applicant is regarded with respect amongst those who attend the temple.
Gurdev Singh is aware the Applicant went to prison, but said that a person who expresses regret for a mistake can be rehabilitated into the Sikh community. After he had been released from prison, the Applicant came to him and asked for a day to be set aside when he could express regret and be rehabilitated, so that he would lead a good life in the future. This day of devotion was organised and duly carried out.
Gurdev Singh related an incident in 1988 when he was working at a Sikh temple in the Punjab. When an anti-Sikh party attacked the temple, the police would not provide any assistance. Indeed, the police and border security force personnel arrested Gurdev Singh and took him to their headquarters where they tortured him. When he was taken back to the temple by jeep, they told him to get out of the jeep and run, and Gurdev Singh believes he would have been shot but for the arrival of women who were coming to pray at the temple. At this time in 1988, the political situation was very bad.
Jagdish Raj
Mr Raj said he has been proprietor of the Little India Restaurant in Pennant Hills for 6 years. He first met the Applicant in India approximately 22 years ago and then again in Australia in 1988/1989. They come from a similar area in India. Mr Raj also moved to Delhi before migrating to Australia. When he met the Applicant again in Australia in 1988/1989, Mr Raj asked about the Applicant's family. The Applicant replied that his brother had been killed. Mr Raj said he is aware of the political problems at that time in the Punjab and of the gang reprisals in relation to the Applicant's brother. Mr Raj was referred to a statutory declaration he swore on 22 April 1999 (T48, p237). He said that in early September 1996, the Applicant came to his restaurant and told him that he had been forced to undertake illegal activities on the threat of his children being killed. The Applicant was so scared that he would not talk any more about it. Mr Raj was not aware that heroin was involved. The Applicant told Mr Raj the name of the person making the threats but Mr Raj did not know him. Mr Raj suggested that the Applicant bring this person to the restaurant for a meeting so that Mr Raj could see this person. Late-ish the next evening, at about 10:00 pm, the Applicant came to Mr Raj's restaurant together with Inder Kalsi, Darljit Singh and his brother, Arjit Singh. Because they arrived at the restaurant late, Mr Raj served them himself. This occurred about 3 or 4 days before the Applicant was arrested in September 1996. After his arrest, the Applicant told Mr Raj of Arjit Singh, who was nicknamed "Captain", coming to visit him in prison.
In early January 1999, Mr Raj gave evidence at the Applicant's sentence hearing. Not long afterwards, he received a telephone call from "Captain" who said he knew Mr Raj had testified against Darljit Singh at the Applicant's sentence hearing. Captain asked Mr Raj to pass on a message to Inder Kalsi and the Applicant that if they ever came back to India, they would not return to Australia alive. As for Mr Raj, Captain said that "if he ever came to India I will see you there". Mr Raj said he passed on the message. He has been back to India since, but said he has not been anywhere near where Captain might be and that they would not have been aware of his presence in India.

Mr Raj said that the Applicant worked for him as a cook between July and September 1999 and still helps him from time to time if Mr Raj needs assistance and the Applicant is available. For example, on one ocassion recently the Applicant handled a catering job for Mr Raj involving about 200 people. Mr Raj's family and the Applicant's are close friends. While the Applicant was in prison, Mr Raj helped Ms Austin with the Applicant's two boys. Mr Raj has offered to lend the Applicant between $25,000.00 and– $30,000.00 to assist him in the purchase of the Tandoori and Curry Club restaurant. Mr Raj said the Applicant is well respected in the Sikh community and, since his release from prison, has become a more dedicated and religious member of the community. Mr Raj also goes to the Sikh Temple and knows that the Applicant is often there.
Mr Raj agreed that there are Sikh communities in different parts of India. However, word spreads as to a person's whereabouts through festivals and fairs, and Punjabi animosity carries on from one generation to another.
Manpreet Singh (Manny)
Manny will be 18 years old on 21 November 2001. He is currently a student at Doonside Technology High School in his final year studying for the HSC. Manny was 2 years old when his father left India. He cannot remember this but his grandparents told him about it and that the reason for his father leaving was that it was not safe for his father to stay because people wanted to kill him. After his father left, he was brought up by his grandparents. They would take Manny and his brother Jack to school and pick them up from school, and they were not allowed to go out by themselves and talk with other people or play with other children. When Manny was about 9 years old, his grandparents told him his uncle had been killed. When Manny was 10 years old, he and his brother were sent to a boarding school in Amriitsar where it was safer. While they were still not allowed out of the building unaccompanied, at least they had more friends. Amritsar was 30 to 45 minutes by road from the village of Abusaid, where his grandparents lived. Manny was at boarding school for about two years. In the holidays, he and his brother went back to stay with their grandparents. His father used to maintain contact by phoning them once a week from Australia and he would also send money for clothes and other expenditure.
Manny was about 11 years old, in early 1995 when his father came to visit. He and his brother were taken from the boarding school to Delhi to see him and stayed for a week. Manny was very excited and happy to see his father and excited about the prospect of coming to Australia. During that time in Delhi, they went to the Australian High Commission to apply for visas. After spending a week with their father, Manny and his brother returned to school in Amritsar. In December 1995, when his father came to visit again, they met Ms Austin. His father and Ms Austin were staying at a friend's hotel in Amritsar and Manny and his brother went to see them there. They also went with their father to the Australian High Commission in Delhi once again with a view to speeding up the process of obtaining visas. Their father had introduced them to Darljit Singh in Amritsar and Darljit Singh went with them to the High Commission in Delhi on two occasions, and also accompanied them when they went for medical examinations. Manny said he was not aware that Darljit Singh was part of his father's problem. He has not seen him since leaving India.
Manny said he was very excited about coming to Australia and having a normal life with his father and Ms Austin. After visas were issued to him and his brother in August 1996, Manny's passport was stolen. His travelling to Australia was delayed by the need to obtain a new passport and he did not arrive in Australia until February 1997. After his brother left for Australia, Manny stayed with his grandparents and undertook special tuition in English at their home. He said he did not want to stay alone at boarding school. Even at that stage, he was not allowed to go out alone because he was told that this was not safe. Manny said he learned that his father was in prison in late 1996, shortly before he came to Australia, and was very shocked by this news and cried. On arriving in Australia, he could speak very little English, but his brother, who had arrived before him, and Ms Austin and the Kalsis helped him. He was so glad to be out of India but a bit scared about being in Australia. Also, he could only see his father in prison once a week.
Initially, Manny went to a special English school for six months and from there to Doonside Technology High School. He gets on well with Ms Austin who helps him with his school work, and he is close to his brother Jack on whom he relied a lot when he first arrived. Since his father came out of prison, things have changed a lot, and his father does a lot with him, with sport, cooking, and going to the temple. They talk a lot and his father is very caring and their relationship is a close one. Manny participates in the Sikh community with his father and his father is teaching him how to cook Indian food. Manny said if is father was deported to India, there would be a total breakdown in his family. He never wants to go back to India. His home is now Australia. He is well settled and has a lot of friends here. He does not even want to think about going back to India – it is so scary.
Manny is studying Physics, Maths, English and Information Technology in his final year at school and wants to undertake a degree in information technology at university. He also helps his brother doing computer work for his security business.
Kawaljit Kaur
Ms Kaur said she was not self self-employed as stated in her affidavit (A8). She works full-time as a nurse with intellectually disabled people for the Department of Community Services. She said the Applicant is a close family friend and they have known each other since 1985 in India. After Ms Kaur arrived in Australia in 1992 and they met once again, the Applicant told her how his brother had disappeared.
Ms Kaur said she has worked for Mrs Fairfax as a chef and still works part-time as a chef now. She is thinking of going into partnership with the Applicant in a restaurant and buying into the business with him. She has proposed putting up a portion of the purchase price.
About three weeks before the Applicant was arrested, Mrs Kaur was aware that the Applicant was in some sort of trouble. By agreement, she followed him when he went to meet Darljit Singh at a railway station, as a witness to the meeting. The Applicant had told her that he had been threatened and unless he undertook the illegal activity his children would be killed. At the railway station, she pretended not to know the Applicant and stood nearby, but she was too far away to hear what the Applicant and Darlijit Singh were saying. After this, she and the Applicant did not get together to discuss more fully what had happened because they were both busy. She was very shocked when she learned from Ms Austin, who phoned her, that the Applicant had been arrested and charged with drug offences.
Gerard Webster, Psychologist
Mr Webster confirmed his report on the Applicant and his family dated 7 February 2001 (A10). Mr Webster provided a copy of his Curriculum Vitae detailing his extensive experience, including in counselling (A11). He said he spent two months in India in 1996 conducting empirical research for a PhD that he is undertaking at Deacon University and which is nearing completion. Where he stayed in India was approximately 200 kms from the Applicant's home village.
Mr Webster confirmed the Applicant told him he had been blackmailed into committing the drug offences under the threat of he and his family being hurt if he did not comply. Mr Webster said the most likely hypothesis in relation to an assessment of the Applicant is that he is a man of integrity who acted illegally but in good faith. The criminal activities in which he became involved were a consequence of his being blackmailed and, thus, the risk of his re-offending is a function of external factors rather than his psychological make-up. Mr Webster said that it is extremely unlikely that the Applicant will commit any similar criminal behaviour in the future. His criminal activity was grossly out of character and only explicable in terms of his being blackmailed. His life style is indicative of a man dedicated to supporting his wife and children as well as to his religious practices and ideology.
Mr Webster said the Applicant was extremely fearful of returning to India. Mr Webster's experience of living in India near the border in 1996 was that the Indian police have difficulty controlling criminal activity. He was referred to the Minutes of the DORS Committee which considered the Applicant's application for refugee status at a meeting on 23 March 1990 (T7). The Minutes record that the Applicant related the circumstances of his brother's disappearance and his own involvement in the Sikh political movement in 1983/1984. Mr Webster acknowledged that the account given of the Applicant's brother's death is different in this record and agreed that the discrepancy does raise a question about the Applicant's integrity.
Mr Webster said Ms Austin developed a severe depression after the incarceration of the Applicant which was exacerbated by the need for her to provide parenting care for his two sons whom she had only met briefly in India and without her having had any previous experience of being a parent. Mr Webster thought it would have been a great relief for her when the Applicant was released from prison and could resume his parental role with the two boys. However, despite those difficult beginnings, a climate of love and respect has developed between the boys and Ms Austin and she has assumed a significant role in their lives. They both have an emotional attachment to her.
Mr Webster said if the Applicant were deported, there was a high probability of Ms Austin's mental health deteriorating. If he is deported and her visiting India is the only way of maintaining contact, this would cause significant problems for her. Mr Webster said Ms Austin is very vulnerable if taken outside her regular routine. Her mental health would severely compromised by the Applicant's deportation. With regard to the effect of the Applicant's deportation on his two sons, Mr Webster noted that their upbringing in India was traumatic and unhappy. They were very limited in what they could do as a result of the perceived threat to their safety. If the Applicant is deported, Mr Webster said his view is that Manny will undoubtedly be harmed, notwithstanding that he has shown a fair degree of resilience, in that it is likely to affect his capacity to develop future close relationships. Jack would probably cope better because of his less sensitive personality and his being older. Because of the history of the boys' emotional development they have some catching up to do relative to the emotional development of other young people of similar age. Jack has developed a thick skin and is more "oppositional" by nature, while Manny tends to be more "co-operative" by nature. Nevertheless, the effect on Jack could still be significant in terms of his emotional capacity to form intimate trusting relationships. Mr Webster said the "catching up" in the boys' emotional development could also be described as "repairing their emotional state". This would undoubtedly be adversely effected by the Applicant's deportation to India, thereby undermining gains made in the last few years.
Mr Webster agreed that if the Applicant is deported, the close relationship between Manny and Ms Austin would continue, but he said Ms Austin's own underlying vulnerability might mean that she is unable to provide the kind of "mothering" she provides now, in that her ability to respond to the boys' needs could be severely undermined by the separation from her husband.
SUBMISSIONS
The Applicant
Ms Salsone, for the Applicant, said the Tribunal, pursuant to Direction No. 9, in making its decision, has to undertake a balancing process taking into account the primary considerations – being the expectations of the Australian community and the best interests of the child – and other considerations, essentially the hardship to the Applicant, Ms Austin, and Jack and Manny, in making its decision. With regard to expectations of the Australian community, Ms Salsone submitted there was no need to protect the Australian community from the Applicant. She noted that the Applicant's convictions are all in respect of related incidents which occurred in September 1996 involving the supply of heroin contrary to the Drug Misuse and Trafficking Act 1985 (NSW). One of the charges relates to "an agreement to supply" which is included in the definition of "supply" by virtue of section 3 of that Act.
Ms Salsone said the circumstances in which the Applicant was involved in the supply of heroin were recognised by Judge Wall in the New South Wales District Court (T48, p240). Judge Wall recognised that the Applicant acted under "duress" and was merely a go-between for a principal. Judge Wall noted the police view that the Applicant was an amateur acting on behalf of a principal supplier. After his arrest, the Applicant assisted the police with their investigation at the risk of harm to himself. Judge Wall recognised that (T48, p252):
the prisoners have experienced a real fear of harm to themselves and that that fear was held by them whilst they were in custody, particularly in the early weeks of custody when certain visitations to the Prison Detention Centre took place.

Ms Salsone referred the Tribunal to paragraph 11(a) of Direction No. 9 which cites examples of offences considered by the government to be very serious in relation to drugs. She noted references made there to the drug related crime being for "financial gain" or "for profit". Ms Salsone submitted this was not the situation in the Applicant's case. He did not commit the offences for financial gain or for profit. He committed them because he was acting under duress. Ms Salsone contended, therefore, that this was not a matter requiring protection for the Australian community.
Ms Salsone said one of the prison visits to which Judge Wall made reference was that of Arjit Singh which was witnessed by Ms Austin. Arjit Singh also threatened Mr Raj, as he related in his statutory declaration dated 22 April 1999 (T48, p239). The evidence of the police officers in the court proceedings also supported the Applicant's evidence, Ms Austin's evidence and Mr Raj's evidence with regard to the Applicant's coercion. Judge Wall concluded (T48, p253):
I am satisfied that but for the circumstances of Karm Singh becoming indebted in a gambling matter to the third party and thereafter receiving certain threats he would not have become involved in the supply of heroin.
Ms Salsone submitted that the Tribunal was bound by Judge Wall's findings of fact. She cited Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 where the Full Court of the Federal Court stated at paragraph 40:
it is not open to the Tribunal to engage in an inquiry that would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal.

She submitted, therefore, that the Tribunal could not make findings of fact inconsistent with those of the Judge. To do so, would constitute an error of law.

Ms Salsone noted that Judge Wall went on to say that he was satisfied that the prospect of rehabilitation for the Applicant on his release "can be described as very good". She said the Applicant's rehabilitation is confirmed by documentary evidence from the Department of Corrective Services in relation to the Applicant's detention and parole. Ms Salsone noted that the Applicant was approved for work release and then parole at the earliest possible opportunity. She said the very high prospects of the Applicant's rehabilitation have been confirmed by evidence of his conduct since his release from prison. She referred the Tribunal to the evidence of character witnesses for the Applicant including as to his involvement in the Sikh community in which he has also involved his two sons. Judge Wall noted the Applicant's strong community ties and that these would assist in his rehabilitation into the community.
Ms Salsone drew the Tribunal's attention to the preamble to Direction No. 9 where it states that the making of deportation decisions is "to protect the Community from the possibility of further criminal behaviour". Ms Salsone submitted that the Applicant's commission of these offences was completely out of character and there was no possibility of further criminal behaviour by the Applicant. He should, therefore, be permitted to remain in Australia. She said the Applicant's deportation would also be unlikely to deter the commission of similar offences because in the Applicant's case, they were committed under duress.
With regard to the second primary consideration, the best interests of any child or children, Ms Salsone said it is clear from the evidence of the Applicant, Ms Austin, Manny and Mr Webster that it is not in the interests of either Manny or Jack that their father be deported. She noted that it is children aged less than 18 years who are considered in this regard. This includes Manny but not Jack. However, she contended that Jack should be considered in the same category because of the delay in his emotional development as a result of his experiences in India and early separation from his parents.
Ms Salsone noted that the delegate's conclusion "that the emotional suffering [of Manny and Jack] was likely to be much less than would be the case if they had been living with Mr Singh on a continuous basis", was totally contrary to Mr Webster's evidence which was that significantly greater harm will be done to Manny and Jack if they are once again separated from their father. Mr Webster's view was that any further separation from their father would be extremely detrimental to their further psycho-social development which has been undermined in the past due to their history of separation and isolation. Moreover, although the boys have a good and loving relationship with Ms Austin, this relationship could never take the place of their relationship with their father if they remain in Australia and their father is deported.
Ms Salsone also submitted that for the boys to visit their father in India is not a viable option: first, it is clear that they have no desire to return to India having now become settled in Australia; more importantly, it is clear that they dread the prospect of returning to a country where they were very unhappy and where their lives were restrictive, secretive and full of fear.
Ms Salsone submitted that a consideration of the primary considerations alone should persuade the Tribunal that this is not a case where the Applicant should be deported. Reference to the "Other Considerations" identified in Direction No. 9 re-enforces this view. Significant hardship would be caused to the Applicant by his being deported. He has rehabilitated himself and re-established strong ties with the Australian Community. He has plans to support his family by pursuing new business interests, including the opening of a restaurant. For him to be returned to India would be devastating: he would lose everything in Australia and would return to threats, fear, and the difficulty of re-establishing himself and finding employment. With regard to Ms Austin, it is clear from Mr Webster's evidence that the Applicant's deportation would be also devastating for her. Similarly, if Jack is not treated as a child and therefore his best interests are not considered as a primary consideration, then the significant harm to him must also be considered under the heading "Other Considerations".
The Respondent

Mr Allatt, for the Respondent, said the crimes committed by the Applicant were considered "very serious" within the meaning of Direction No. 9. With regard to the Applicant's motivation, Mr Allatt noted that Judge Wall's statement that "the commission of those crimes was not motivated solely by greed, but there was a measure of coercion involved" made it plain that his Honour did not accept the motivation for the offences to be wholly coercion. In giving evidence, the Applicant acknowledged that Darljit Singh had offered him money, although he said he did what Darljit Singh told him to do, not for money , but in order to save his children. Mr Allatt submitted that there was an element of financial gain even though the Applicant denies this.
Mr Allatt contended that a question as to the Applicant's integrity was raised by the different accounts he gave of his brother's disappearance in his description to the DORS Committee on 23 March 1990 (T7) and in his statutory declaration of 16 May 1999 (T51) Mr Allatt noted that Judge Wall was mistaken when he said that the Applicant obtained political asylum when he came to Australia in 1988. Moreover, the Applicant's evidence to the Tribunal of the death of so many of his friends in connection with the disappearance of his brother was not credible. Mr Allatt suggested the story was woven together to suit a particular purpose. He also pointed to the Applicant's evidence that he did not know, when he went to New Zealand in 1987, of the possibility of his applying for refugee status, which Mr Allatt said was implausible. He said these doubts as to the Applicant's integrity mean that not only is there a question as to the Applicant's motivation in committing the offences, but also suggest that there may be a risk of recidivism. He referred the Tribunal to the decision in Whittaker and Minister for Immigration and Multicultural Affairs [2000] AATA 425, relating to the review of a deportation order, where the Tribunal said that recidivism means "a recurrence of any form of criminal behaviour sufficiently serious to ground a deportation order" (at para 36).
With regard to the best interests of any child or children, Mr Allatt noted that Jack is now aged 20. He has been out of the country back-packing for 7 months and has not spoken to his father for several months. With a person of this age who has asserted his independence, the considerations are different to those which apply in respect of a child. In the case of Manny, he will be 18 on 21 November 2001. The evidence has indicated that he is a level-headed and well-settled young man who has adjusted well to life in Australia. He has lived separately from his father before. Mr Allatt submitted that even if the effect of the Applicant's deportation on Manny is significant, nevertheless, it does not displace the need to protect the Australian community.
With regard to "Other Considerations", Mr Allatt acknowledged that Ms Austin would suffer distress if her husband is deported but, once again, he contended that this did not outweigh the primary consideration of the protection of the Australian community. Mr Allatt said if the Applicant is returned to India, he will be able to live in Sikh communities other than that in the Punjab. The Applicant's claim that he will be harmed if he is returned to India should be discounted given the lapse of time since the threats were made. In conclusion, the Respondent submits that, notwithstanding the difficulties for Jack, Manny and Ms Austin, it is appropriate that the Applicant be deported.
APPLICATION OF THE LAW AND FINDINGS
The issue for the Tribunal to determine is whether the Applicant should be deported, a decision which the Tribunal must determine by reference to Direction No. 9.] First, with regard to the expectations of the Australian community, the Tribunal considered the seriousness and nature of the crimes committed by the Applicant. The Tribunal notes that the Applicant was convicted of four counts of supplying heroin which took place in the period 5 September 1996 to 17 September 1996, when the Applicant was arrested. He was convicted and sentenced to imprisonment for a period of three years and four months. Judge Wall accepted that there was "a measure of coercion involved" as a result of the Applicant's fear that his children in India would be harmed unless he became involved in the supply of heroin.
The Tribunal notes that among the examples of offences considered by the Government to be very serious, stated in paragraph 11 of the Direction, are the "distribution, trafficking (including possession of this purpose), commercial dealing, or selling of illicit drugs". As Ms Salsone has pointed out, however, this is qualified in paragraph 11(a) by reference to persons embarking on drug-related crime for financial gain or profit. The Tribunal finds that the Applicant's motivation in supplying heroin was for neither financial gain nor for profit. Nevertheless, in all other respects the offences committed by the Applicant are to be regarded as very serious crimes.
With regard to the risk of recidivism, the Tribunal notes that Judge Wall was satisfied that the Applicant's prospects of rehabilitation on release from prison were very good (T48, p254). The evidence of the Department of Corrective Services documents from both before the Applicant's release and when he was on parole, and the evidence as to the Applicant's conduct since being released from parole, indicates that Judge Wall was correct in his assessment. The Tribunal finds there is no risk of recidivism. The Applicant's sense of community responsibility, his devotion to his religion and his devotion to his family have all been significantly heightened as a consequence of his post-arrest experiences. The Tribunal noted the evidence of the head priest at the Parklea Sikh Temple, Gurdev Singh, who spoke of the respect with which the Applicant is regarded in his community. This was confirmed by Jagdish Raj who said that since the Applicant was released from prison, he has become a more dedicated and more religious member of the community. The Tribunal also witnessed the strength of the relationship between the Applicant and Ms Austin and between the Applicant and his son Manny. It is clear these are loving, caring relationships.
With regard to deterrence, in the Tribunal's view, there is likely to be little deterrent effect given the particular circumstances of the Applicant's case and the fact that he was acting under coercion in committing the offences for which he was, nevertheless, imprisoned. Judge Wall took into account general deterrence in sentencing the Applicant noting "that stern punishment must be inflicted on offenders who supply heroin in our community".
Finally, when considering the expectations of the Australian community, paragraph 15 of Direction No. 9 sets out the Government's view that "the Australian community trusts non-citizen residents to obey Australian laws" and that it may be appropriate to deport a person who betrays this trust. In the Applicant's case, the particular circumstances in which the offences were committed must be considered. Having done so, in the Tribunal's view, it would not be the community's expectation that the Applicant should be deported.
The second primary consideration to which the Tribunal must have regard is the best interests of any child or children aged less than 18 years who are in a parent/child or other close relationship with the potential deportee. Paragraph 16 of the Direction provides that children who are aged 18 years or more are not to be considered under this heading, but under the heading "Other Considerations". The Applicant's younger son, Manny, will be 18 years of age on 21 November 2001. Manny has been in Australia since 10 February 1997 and is in his final year at High School undertaking the HSC. He hopes to study information technology at university. The evidence of Ms Austin and Manny indicates that he is now well settled into the Australian community and looking forward to going on to tertiary education. It is clear from Manny's evidence that he wishes to divorce himself from his past experiences in India, and he told the Tribunal that he never wishes to return to that country.
The Tribunal accepts the evidence of the psychologist, Gerard Webster about the effect of his experiences on his emotional development and that in recent years he has been catching up on the level of emotional development of young people of similar age. Mr Webster referred to this as a "repairing" of Manny's emotional state. The Tribunal accepts Mr Webster's evidence that Manny would suffer significant adverse effects if his father were deported to India, such that his ability to form intimate relationships would be significantly impaired. The Tribunal finds that while Ms Austin has a good relationship with Manny, her vulnerability to depression should the Applicant be deported would limit her ability to substitute for the Applicant's absence. In the Tribunal's view, there is also no realistic option of Manny visiting his father in India, given Manny's absolute aversion to returning to that country.
Thirdly, with regard to the "Other Considerations" the Tribunal must take into account, of relevance here are the degree of hardship that may be suffered by the Applicant if he is deported and by Ms Austin and Jack. The Tribunal finds that the Applicant has strong family, social and business ties in Australia: he has strong ties in the Sikh community, where he is well respected; his wife and two children who are all Australian citizens are here; and he has business interests which he proposes pursuing in the future, in particular, he has acquired an option to purchase an Indian restaurant in Hornsby. The Tribunal accepts that if the Applicant were deported to India, he fears for his safety and this would inhibit his ability to re-establish himself in the Indian Sikh community, even if he were to live in another region of India other than the Punjab.
With regard to the degree of hardship which may be suffered by Jack if the Applicant is deported, in the Tribunal's view, similar considerations apply to Jack as those to his younger brother Manny. Mr Webster was of the view that Jack is "thicker skinned" than his brother but, nevertheless, has been inhibited in his emotional development as a result of his past experiences in India. The catching up which he needs to do requires a period of stability in his family background. In Ms Austin's case, the Tribunal finds that the deportation of the Applicant to India would be devastating for her. Mr Webster gave evidence as to her vulnerability and the high probability that her mental health would deteriorate significantly if the Applicant is deported.
In the Tribunal's view, the evidence points overwhelmingly to the discretion to deport not being exercised in the case of the Applicant. A consideration of both the primary and other considerations all point to this conclusion. The Tribunal, therefore, decides to set aside the decision under review and substitute a new decision not to exercise the Minister's power under s 200 of the Migration Act 1958 to deport the Applicant.
I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President
Signed:         .....................................................................................
  Associate
Dates of Hearing   27-28 August, 19 October 2001
Date of Decision   7 November 2001
Counsel for the Applicant         Ms C Salsone
Solicitor for the Applicant          Mr J Coelho, Coelho & Coelho Solicitors
Solicitor for the Respondent    Mr M Allatt, Australian Government Solicitor